Top 10 ways to “friend” SCOTUS
on Aug 21, 2018 at 10:45 am
William Seidleck is a law clerk at the U.S. Court of Federal Claims. JP Schnapper-Casteras is the founder of Schnapper-Casteras PLLC.
Filings by “friends of the court,” known as “amicus briefs,” are more important and sophisticated than ever. They come in many forms and lengths — but contemporary practice suggests that there are 10 (or so) common themes and clear strategies that can have a real impact.
Recent years have seen between 600 and 1,000 amicus briefs per term, which is an upward of 800 percent increase from the 1950s (notwithstanding the latest ups and downs of the Supreme Court’s docket). The groundswell of amicus briefs flows from several sources: In terms of format, amicus briefs are uniquely flexible, because they can address legal issues beyond the specific “question presented” and can explore facts beyond the record developed below. In terms of strategy, sometimes the parties to a given case will encourage others to file briefs to amplify or augment the parties’ core position. Other times, outside entities will independently want to file an amicus brief to advance their own legal or organizational interests and, in practice, there is little the parties can do to control, let alone stop, them.
The surge of amicus briefs also presents a conundrum: As the number of briefs increases in a particular case, the ability to “stand out” — and get closely read and utilized by the clerks or justices — can decrease.
All of this activity has spurred cutting-edge analysis about who files amicus briefs most often, what briefs are most effective and how large clusters of briefs originate (i.e., are “wrangled”) in certain cases. But less attention has been paid to the fundamental question of when and why an individual or organization should file an amicus brief in the first place. Whether you are perusing amicus briefs on SCOTUSblog or writing one from scratch, it is useful to think about the different roles these briefs can play and how they may add value to the justices’ decision-making. Prospective filers should also note that designating a clear theme at the outset of an amicus brief helps busy clerks and clients quickly sift through a pile of filings.
In a nutshell, here are the top 10 types of amicus briefs that can help “friend” the Supreme Court:
1. Historical: a brief focused on American history, legislative history or originalism. Examples: a brief by originalist scholars in National Labor Relations Board v. Noel Canning [Noel Canning Originalist Scholars] and a brief detailing how the founding generation would have understood the Fourth Amendment in Carpenter v. United States [Originalist Brief].
2. Novel legal argument: a brief that points out a new and different way for the court to resolve the case. For example, it is not uncommon for amicus briefs to argue that a case presents unexplored jurisdictional, standing or other justiciability issues. Example: a brief in Kiobel v. Royal Dutch Petroleum Co., which discussed in depth whether the Alien Torts Statute applied extraterritorially [Multinational Companies Kiobel Brief]. Other briefs may advocate an approach — in terms of how the court should decide the case — different from that of the party they support. Example: the brief that was filed by the American Civil Liberties Union and other groups in Brown v. Board of Education. While the Brown appellants at first tried to distinguish Plessy v. Ferguson and say that it did not apply, the amicus brief argued forcefully that Plessy needed to be overruled [Brown ACLU Brief].
3. Shadow merits argument: a brief that amplifies and expands on an argument made by a party. Examples: In King v. Burwell, Professor William Eskridge and other amici specifically focused on textualist justifications underlying the federal government’s arguments [King Eskridge Brief]. Another example is the brief of Senate parliamentary experts in Noel Canning, which expounded upon the historical and parliamentary arguments made by the respondents [Noel Canning Parliamentary Experts].
4. Unexpected voice or coalition: a brief that arises when groups who are not perceived to share a common interest come together. The result is potentially eye-catching. Examples: The brief that was filed by a number of military officers in Gratz v. Bollinger and Grutter v. Bollinger arguing in favor of schools being able to consider race in their admissions policies [Military Brief in Grutter]. Another example is a brief by former ICE and Homeland Security officials in United States v. Texas supporting the Deferred Action for Parents of Americans program [ICE & Homeland Security Officials].
5. Cross-partisan valence: a brief that appears when usually diametrically opposed groups unite over an issue. Like “unexpected voices” briefs (#4), these briefs can also stand out. Examples: a brief by a group of Democrats in McCullen v. Coakley [Democrats McCullen Brief] and the brief by the former Chairman of the Republican National Committee and other party leaders in Obergefell v. Hodges [LKenneth Mehlman Brief].
6. Practical impact: a brief that seeks to call the court’s attention to the real-world effects of its decision on the law and society. Examples: Madeleine Albright’s brief in Arizona v. United States [Arizona Albright Brief] — discussing the impact SB1070, Arizona’s stringent immigration law, had on foreign relations. Another example is a brief by former federal officials in McDonnell v. United States — describing the possible implications of a sweeping interpretation of public corruption law on the relationship between politicians and their constituents [McDonnell Former Federal Officials Brief].
a. Business: a particular kind of practical-impact brief that highlights the potential effects of a case on the business community. These are often filed by the U.S. Chamber of Commerce or other industry associations. Example: [Salman v. United States Carter Phillips SIFMA brief]. Other times, they are filed by individual businesses or coalitions of Fortune 500 signatories to demonstrate the depth and breadth of the impact.
b. Administrability/feasibility: a specific form of “impact” brief that often focuses on whether a particular ruling from the Supreme Court would be administrable or proposes a more manageable alternative. Example: the Brennan Center’s brief proposing a test for deciding illicit partisan gerrymandering in Benisek v. Lamone [Brennan Center Brief]. This may also take the form of an “expert” brief, in which subject-matter specialists (legal, governmental, scientific or otherwise) weigh in to essentially supplement the record.
7. Policy: a brief often filed by members of Congress or former officials explaining a position they took in enacting a measure being reviewed or their understanding of the litigation. Example: a brief by 207 Members of Congress in Zubik v. Burwell [Members of Congress Covington & Burling Brief].
8. Brandeis brief: named after then-attorney Louis Brandeis, this is a brief that relies on scientific or social scientific data or research relevant to the case. Example: in Graham v. Florida, amici used recent psychological research in arguing that adolescents should not be sentenced to life in prison without the possibility of parole [Graham APA Brief].
9. Academic: a brief written by legal scholars, usually scholars who are already experts in a given field. Examples: brief by the Civil Procedure and Securities Law Professors in Public Employees’ Retirement System of Mississippi v. IndyMac MBS [Civ. Pro. Professors Brief] and the Federal Courts Scholars brief in Patchak v. Zinke [Scholars Brief].
10. Stories: an approach that seeks to highlight the human or societal ramifications of jurisprudence on individuals. Example: brief by former juvenile offenders in Graham v. Florida [Former Offenders Brief].
While some of these briefs reflect tried and true formats, two observations are in order.
First, sometimes timing matters just as much as substance. Most Supreme Court-watchers are familiar with the green-covered amicus briefs filed with the court at the merits stage (after the case has been set for argument). But amicus briefs can also play a role at the cert-petition stage (before the court has decided whether to take up a particular case). These cream-colored briefs have a different purpose from their green cousins: They are meant to influence the justices’ decision about whether to grant or deny cert — and they provide a unique opportunity to interested amici. Unlike merits briefs, which have become ubiquitous, cert-stage amicus briefs are much fewer. Indeed, a half-dozen amicus briefs accompanying one cert petition would be a lot. This, of course, increases the chances of an amicus brief getting closely read. But the presence of amicus briefs can also help call attention to the cert petition. Example: [Hosanna-Tabor Evangelical Lutheran v. Equal Employment Opportunity Commission Cert. Brief]
Second, different judges and justices think differently about amicus briefs. Judge Richard Posner, for example, has made his distaste for repetitive amicus briefs known — calling them “an abuse.” In fact, Posner showed a willingness to place restrictions on the filing of amicus briefs: “After 16 years of reading amicus curiae briefs the vast majority of which have not assisted the judges, I have decided that it would be good to scrutinize these motions in a more careful, indeed a fish-eyed, fashion.” Justice Samuel Alito (while still a judge on the U.S. Court of Appeals for the 3rd Circuit) pushed back on the idea of restricting amicus briefs, going on record to say that they can be quite helpful. Nevertheless, he noted that an amicus brief should do more than rehash the parties’ arguments.
Certainly, if you are filing an amicus brief in a particular circuit, check the local rules and try to get a sense of the judges’ preferences beforehand. (It is also worth conferring with the parties to get a sense of what other briefs are being filed and whether there is potential for consolidation — the U.S. Court of Appeals for the District of Columbia Circuit even has a rule requiring as much.) But above all, avoid simply parroting the parties’ arguments without adding anything new to the discussion. As Justice Antonin Scalia and Bryan Garner advise:
Don’t replow the ground you expect the party you’re supporting to cover . . . . [Y]ou should try to develop a ‘take’ on the case that is different from what the party produces; or to discuss in great depth an aspect of the case (for example, historical material) that the party will not have much time for; or perhaps (if you are supporting the appellee) to defang a particular amicus brief filed on behalf of the appellant.
In the end, of course, there are more than 10 ways to “friend” the court. This list is by no means exclusive and new methods are emerging each term, including use of data, graphics, crowd-sourcing, and even a measure of humor [Cato Susan b. Anthony List v. Driehaus Brief]. But in life as in law, part of being a good friend is adding something new to the relationship.